Constructing refugee vulnerability

This section provides the historical and legal backdrop for understanding the construction of “vulnerability” in the Refugee Convention and its applications to third country resettlement. To accomplish this goal, this section juxtaposes religious sanctuary with the Nansen refugee and contemporary applications of vulnerability and third country resettlement. To place the comparison in context, this section examines how UNHCR, Germany, Canada, and the United States construct priorities based on vulnerability for third country resettlement. While determinations of vulnerability are typically presented as legally objective and neutral decisions, they are in fact deeply subjective and political.39

The foundations of state-centric refugee regimes

The development of the contemporary international refugee protection regime sheds light on how vulnerability in relation to refugees is conceptualized today and why males from Muslim-majority countries are excluded from protection. Before 1920, leading up to World War I, refugee protection was not strictly delineated. Protection operated in a manner that recognized humanitarian and human rights norms of refugees to move freely between countries.40 While most scholars mark the beginning of refugee protection at the start of the modern nation-state,41 religious norms have also provided underlying principles for ex-tending protection to exiles.

In Judeo-Christian religious traditions, the concept of sanctuary was provided by

churches, which offered places of refuge for those accused of crimes and were susceptible to revengeful attacks by their victims. The occurrence of retaliatory attacks on accused persons coincided with the lack of legal protection afforded to them during those historical periods. “The religious origins of sanctuary imply a certain level of ethics and compassion towards individuals who are displaced from their home countries.”43

Similarly, the concept of hijrah in Islam provided the right to refuge in any Muslim state.44 “The refugee regime itself was based on the almost entirely laissez-faire attitude of nations toward the fugitives who crossed their borders.”45 There was no distinction between the immigrant and refugee. They were both treated equally.46 Sanctuary was not conceived of as an international affair or an issue of government concern.47

The contemporary international refugee law regime began with Fridtjof Nansen’s creation of international instruments and refugee travel documents, which became known as Nansen passports.48 This framework was premised on the categorization of groups under an exclusion and inclusion model that is aligned with a nation-state’s interest. The initial refugee protections were categorical, with a focus on repatriation.49 For example, in 1917, the Russian Revolution caused a mass exodus.50 In response, the League of Nations implemented a categorical approach to refugee protections, extending refugee travel documents to Armenians in 1924, and to Turks, Assyrians, Syrians, Assyro-Chaldeans, and Kurds in 1928.51 This highly categorical approach was geared toward protecting ethnic and national groups, and religious minorities who were persecuted and unable to return to their countries of origin.52 The 1931 Great Depression marked a further constraint on refugee protection, as receiving nations became increasingly concerned with the financial obligations of welcoming refugees.53

The regime that emerged relies heavily on state interests, in contrast to past religious sanctuary protections that were, in theory, premised on a refugee’s right to a safe haven. With religious sanctuary, refuge was given to both criminals and individuals subject to retaliatory attacks in their home countries.54 In contrast, refugee law scholar James Hathaway posits that since World War II (WWII), state interest has been the greatest factor shaping international refugee policy.55 The universal protection of refugees became filtered through the lens of a nation-state’s interest, where international law, politics, economics, and ideology influence who qualifies as a refugee. This concept of the refugee was also premised on state actors persecuting its own citizens.’6

Refugee law scholars have critiqued the refugee regime that has emerged post-WWII as being incongruent with humanitarian and human rights principles that underlie protection.57 The varied presumptions about which migrants constitute refugees hinder the nondiscriminatory implementation and global consensus of who qualifies as a refugee under the Convention.58

Contemporary systems for processing refugees are premised on a state’s interest, which has resulted in a system where state politics govern protection.59 According to Hathaway, “Current refugee law can be thought of as a compromise between the sovereign prerogative of states to control immigration and the reality of coerced movements of persons at risk.”60 Understanding the history, aspirations and the creation of the contemporary international refugee law provide the foundation for understanding how vulnerability is framed and why, under the post-WWII system, young single males from Muslim-majority countries are excluded from protections.

The vulnerability assessment in the refugee resettlement process

Refugee resettlement is one of the UNHCR’s durable solutions to refugee flows. A durable solution is one that assists refugees to live safely while rebuilding their lives.61 Resettlement is the transfer of refugees from an asylum country (typically a refugee camp) to a third state that, under its legal provisions, has agreed to admit the refugee for permanent resettlement in an effort to find a durable solution.62 This section describes the legal criteria in which UNHCR, Germany, Canada, and the United States apply to assess vulnerability for resettlement. These countries were selected because of the pervasive contemporary issues and intranational debates on both refugee resettlement and the resettlement of males from Muslim-majority countries.

An individual is first designated as meeting the criteria of a refugee through UNHCR’s refugee status determination (RSD) process; they then may await resettlement while being provided aid in the form of housing at a refugee camp or aid within the country where they are currently residing.63 Resettlement is an alternative to traveling to a country’s border and demanding asylum there.64 Individuals who demand asylum at or within a country are identified as “asylum seekers.” Increasingly, asylum seekers have begun to place themselves in deadly circumstances in attempts to reach safety.65

Although there are approximately thirty-seven countries that have refugee resettlement programs,66 refugee resettlement is typically a very limited remedy. Out of the 25.4 million refugees and 3.1 million asylum seekers worldwide,67 less than 1% benefit from third country resettlement.68 Refugee resettlement is typically reserved for the “most vulnerable” refugees. Individual countries set admission quotas to safely bring particularly vulnerable individuals to their countries.69 According to UNHCR, “During 2015, UNHCR referred 134,000 refugees for resettlement—a twenty-nine percent increase from 2014, and the highest such number in about two decades.”70 In 2015, “Syrians constituted the single largest nationality submitted, with 53,300 individuals referred.”71 UNHCR and resettlement countries have developed priority categories around the construct of vulnerability in order to select the most vulnerable refugees for resettlement. UNHCR and countries with resettlement programs have also developed factors to assess when an individual is most “vulnerable” to qualify for resettlement.

UNHCR construction of vulnerability for refugee resettlement

UNHCR prioritizes seven categories of vulnerable refugees for resettlement.72 The categories include the following:

  • 1 Legal and/or Physical Protection Needs of the refugee in the country of refuge (this includes a threat of refoulement);
  • 2 Survivors of Torture and/or Violence, where repatriation or the conditions of asylum could result in further traumatization and/or heightened risk or where appropriate treatment is not available;
  • 3 Medical Needs, particularly life-saving treatment that is unavailable in the country of refuge;
  • 4 Women and Girls at Risk, who have protection problems particular to their gender;
  • 5 Family Reunification, when resettlement is the only means to reunite refugee family members who, owing to refugee flight or displacement, are separated by borders or entire continents;
  • 6 Children and Adolescents at Risk, where a best-interest determination supports resettlement;
  • 7 Lack of Foreseeable Alternative Durable Solutions, which is generally relevant only when other solutions arc not feasible in the foreseeable future, when resettlement can be used strategically, and/or when it can open possibilities for comprehensive solutions.73

Once UNHCR makes an assessment of an individual’s vulnerability through establishing qualification via one of the categories, refugees must then wait to have their case submitted to a country with a resettlement program.74 In addition to UNHCR’s criteria, individual countries have their own priority categories.75 Based on a country’s own assessment and priority categories, it will set admission quotas to bring individuals who arc particularly vulnerable safely to their country.76

In 2017, UNHCR resettled a total of 65,074 refugees—38,345 were men and 36,825 were women.77 Of that total, within the age range of 18-59, 17,254 (approximately 22%) were males and 17,631 (approximately 24%) were females.78 In the age range of 0-17 years old, 18,260 (approximately 28%) were males and 20,247 (approximately 24%) were females.79 If we examine the data on the settlement of Syrian refugees, in 2017, UNCHR resettled 17,823 female Syrian refugees and 19,509 males; in the 18-59 age range, 8,159 were men, and women totaled 8,154.80

Vulnerability prioritized in Canada

The Canadian government sets a target each year for the resettlement of refugees,81 with the Department of Immigration, Refugees and Citizenship administering Canada’s resettlement program.82 Canada has three general categories of refugee resettlement programs: the Humanitarian-protected Persons Abroad Class (HPC), the Urgent Protection Program (UPP), and the Private Sponsors Refugee Program.83 In general, a resettled refugee must meet the Refugee Convention definition to qualify for resettlement or meet the criteria of the HPC.84

Canada’s UPP protects persons who qualify for resettlement who are in “need of urgent protection through resettlement due to immediate threats to their life, liberty or physical safety. Medical emergencies do not qualify for the UPP.”85 Canadian visa officers assess vulnerability by evaluating individuals whose circumstances give rise to “a heightened risk to his/her physical safety or well-being.”86 In addition, medical or family conditions may result in a heightened vulnerability assessment.87 When UNHCR designates a case as “urgent,” Canadian visa officers will consider the case for expedited processing within 1-4 months.88

Canada also has a special category for refugees who have medical needs or are survivors of violence or torture, as well as for women at risk, children, and the elderly.89 The “Canadian Women-at-Risk Program provides protection and assistance to refugee women who are in critical situations,” which includes “women without the normal protection of a family who find themselves in precarious situations and who are in a place where local authorities cannot ensure their safety.”90

In 2016, Canada’s target for resettling refugees from the Middle East and North Africa was 35,000.91 From January 2015 to March 2017, Canada resettled a total number of 74,840 refugees: 38,790 were male and 36,035 were female.92 Out of the 43,725 resettled Syrian refugees, 30,460 were total dependents and/ or spouses.93 Spouses totaled 8,245, whereas dependents totaled 22,215.94 In January 2017, of the 1,300 Syrian families that were resettled, most consisted of eight or more people, and another 1,200 were families of seven or more.95 The impact of the application of Canada’s vulnerability factors, coupled with priorities as articulated by the Canadian government, resulted in the majority of individuals resettled being large families, with very few unattached single males. In 2016, Canadian Citizenship and Immigration did not reply when asked how many single males had been admitted.96

Vulnerability prioritized in Germany

In 2015 and 2016, Germany experienced an increase of asylum seekers (i.e., individuals who seek classification as a refugee at the border) as opposed to resettled refugees. In fact, “Three-quarters of first-time asylum applicants in 2015 were male, and 68% of them were under the age of 33. Roughly half of them were married. The most common native languages [were] Arabic, Albanian and Dari/Farsi.”97

Germany’s refugee resettlement program is relatively new, as it only began in 2012.98 Before 2012, Germany only had an ad hoc resettlement program.99 Germany’s Federal Ministry of the Interior, the Federal Office for Migration and Refugees (BAMF), and the Federal Foreign Office arc responsible for implementing its resettlement program. Section 23(4) of Germany’s Residence Act provides that “the Federal government, in consultation with individual states, can instruct the Refugee office to admit to Germany certain groups of foreigners who are granted temporary or permanent residence permits upon arrival.”100 Under Germany’s resettlement program, UNHCR must first designate the individual as a refugee in order to qualify for resettlement.101 Next, the Federal Ministry of Interior develops the admission criteria for the resettlement program.102 The criteria include

preservation of family unity (if the family members are staying in the country from which the person is to be admitted), family or other ties in Germany conducive to integration, the “integration potential,” determined by level of school and occupational training, work experience, language skills, religious affiliation, age, [and] degree of vulnerability^

Germany also gives special attention to the following categories of refugees: survivors of violence and/or torture, medical cases, women and girls at risk, children and adolescents at risk, and unaccompanied minors.104 In addition, “A sub-quota of up to 5% is reserved for persons in critical medical condition; there are no specific sub-quota for the other groups.”105

In response to the conflict in Syria, Germany expanded its resettlement program to create the temporary Syrian Humanitarian Admissions Program.106 Under this program, between 2013 and 2015, 20,000 Syrians were permitted to enter Germany directly from Syria’s neighboring countries, or from Egypt or Libya.107 Germany also has a private resettlement program that permits “primarily German and Syrian citizens who have been living in Germany for more than a year and who wish to bring Syrian relatives seeking protection into the country.”108

In 2011, Germany implemented a pilot program to annually resettle 300 “particularly vulnerable” refugees who would be admitted from third countries.109 The German government data indicated, “Taking account of the national quota, in 2016 and 2017, Germany will resettle 1,600 persons in total and 800 persons per year within the framework of an EU resettlement pilot programme.”110 Germany implemented a “one-time admission of 1,600 of a total of 20,000 refugees to be resettled throughout the EU in 2016 and 2017.” 111 The goal of the one-time admission program was to reduce irregular migration by providing legal forms of protection.112 Through irregular migration, individuals request asylum when they arrive at a country’s border. In 2017, through its refugee resettlement program, Germany resettled 3,005 refugees; this included 1,890 females and 1,762 males.113

Vulnerability prioritized in the United States

In the United States, the president, in consultation with congressional committees, sets the maximum annual number for refugee admissions.114 The United States’ Immigration and Nationality Act states that “admissions ... shall be allocated among refugees of special humanitarian concern to the United States.” 115 The U.S. Department of State’s Bureau of Population, Refugees, and Migration (PRM) handles the resettlement program through the U.S. Refugee Admissions Program.116 Prospective refugees may be referred to the U.S. program by the UNHCR, a U.S. embassy, or a designated nongovernmental organization (NGO); in some cases, they can access the national refugee program directly.117 PRM works with NGOs, international organizations, or U.S. embassy contractors who manage a Resettlement Support Center (RSC) to assist in refugee resettlement.118 The RSCs assist applicants in completing documentary requirements and scheduling refugee eligibility interviews with the Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS), which adjudicates refugee applications and makes decisions about eligibility for refugee status. The USCIS officer must determine whether the applicant is qualified under one of the refugee processing priorities, meets the INA definition of a refugee, is not firmly resettled in another country, and is admissible to the United States under U.S. immigration laws.

Refugees are categorized into three different priority categories:

Priority' 1 (P-1) covers refugees for whom resettlement seems to be the appropriate durable solution, who arc referred to the U.S. refugee program by UNHCR, a U.S. embassy, or a designated NGO.

Priority' 2 (P-2) covers groups of special humanitarian concern to the United States. It includes specific groups that may be defined by their nationalities, clans, ethnicities, or other characteristics. P-2 cases can access the U.S. refugee program directly'.

Priority' 3 (P-3) covers family' reunification cases. This priority is limited to designated nationalities. Refugee applications under P-3 are based on an affidavit of relationship filed by' an eligible relative in the United States. P-3 cases can access the U.S. refugee program directly'.119

Refugee applicants must clear all required security' checks before their applications can receive final approval.120 Individuals are first resettled based on where they' have family; otherwise, they' arc resettled according to the community’s resources and the refugee’s needs.121

Since 2000, the Bureau of PRM expressed a commitment to fund gender-based violence prevention, particularly' violence targeted at women and girls during disasters and conflicts.122 The partnership and priority categories between both PRM and UNHCR may' result in UNHCR referring more women and children for resettlement in the United States. While the President and Congress establish priorities, PRM “has led in proposing admissions ceilings and processing priorities.”123

The refugee admission numbers reveal that under the U.S. Refugee Admissions Program in 2016, 78% of the more than 8,000 Syrian refugees admitted to the country' were women or children.124 Some 58% were children, with a roughly' even split between girls and boys.12’ In 2015, half of the Syrian refugees brought to the United States were also children, with only 2.5% of them over age sixty, and only 2% “single males of combat age.”126

Recently, Convention signatories excluded bona fide refugees based on a presumption of dangerousness and nonvulnerability' of males from Muslim-majority countries. The Canadian Prime Minister’s statement and the President of the United States demonstrate how narratives can develop into policies that facilitate the discriminatory' exclusion of certain categories of refugees. The broad policy statements of the leaders directly' affect the decision to admit a refugee. This results in excluding broad categories of individuals without a full evaluation as to whether the individual qualifies as a refugee, fits within vulnerability' priority' categories, or has committed (or will commit) acts that render him or her ineligible for Convention protection. In reference to the exclusion of young single refugee males from Muslim-majority countries, the rhetoric from politicians and resulting policies and laws reinforce gendered norms and stereotypes that lead to the exclusion of this demographic of refugees.127

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